DEAR EDITOR:

Saturday's Around Town column in the Marietta Daily Journal, headlined "Rain on Brown's Parade: Appeals ruling major setback for EMC board" was rife with errors. As one of the two speakers at the Cobb EMC meeting that was the focus of the column, I feel compelled to respond.

First, let's be clear. Neither Judge Tom Cauthorn nor I represent (Cobb EMC head) Dwight Brown, as the column erroneously stated. Judge Cauthorn worked with the Special Litigation Committee of the board of directors of Cobb EMC, which did an exhaustive review of the relationship between Cobb EMC and Cobb Energy and reported those findings to the court. I represent the co-op and an independent committee of the board, none of whom has been accused of any wrongdoing. Brown does not even serve on the co-op board or on either board committee represented by Judge Cauthorn or myself.

The column implies that Cobb EMC's board is opposed to mail-in balloting. This is simply not true. The board uniformly supports open democracy and member voting by mail and is on record in several places - including the MDJ and under oath in court - stating this position.

The board was in support of moving forward with the member meeting to determine if we could use mail-in ballots, and the plaintiffs blocked it in court. It is reasonable to assume we would have already held elections if the plaintiffs had not appealed a procedural point.

The notion that the court of appeals ruling of last week is a death knell for Cobb EMC's position on the elections process or its board is completely misleading. The court of appeals decision was, at most, a mixed bag for the parties. Most of the bylaws in question were not disturbed by the ruling. On the matters that were reversed, the court of appeals made several mistakes, most notably:

* It is not true that the bylaws require the proxy master to vote before a meeting in violation of the settlement agreement. The proxy master would not vote until the meeting.

* It is completely false to say a member cannot change his or her vote after they have decided to vote by proxy. Georgia law clearly allows anyone to revoke a proxy at any time prior to the actual vote and to participate in person. It is a position we support and have so stated on numerous occasions.

* The appeals court ruling is based on the erroneous assumption that all members live in Cobb County, which they do not. Cobb EMC's service territories include locales 200 miles or more away from its Marietta headquarters. If everyone who lives in these distant areas is required to vote in person rather than by proxy, the likelihood of their participation is slim. Plaintiffs are trying to hold down the number of members who would participate in board elections because the fewer participants, the more probable it becomes that a small group of dissidents can control the process.

These are all very close legal questions. Cobb Superior Court Judge Stephen Schuster, a well-respected, thoughtful judge who has been in charge of this case since the beginning, agreed that Cobb EMC's board had acted in a reasonable and pro-democratic manner. A court of appeals judge merely ruled that the pro-democratic move by the board violated a settlement agreement. It is unfair for the MDJ to accuse Judge Schuster of getting it wrong - because he didn't. The board will continue to fight for all members' rights to vote and will petition the Georgia Supreme Court to review the lower court's ruling.

Finally, to accuse anyone of hiding the court of appeals ruling at last week's luncheon is simply misleading. Judge Cauthorn and I were there to report on our investigations. The appeals court ruling concerned only the procedures to be used at a special meeting of members. It had nothing whatsoever to do with our presentations.

It should also be noted that members of the media were present at the meeting and the appeals court ruling was posted on the Internet before our presentations ever began. It was information that was widely known and the floor was open to any questions. The topic was never brought up by anyone - including a representative of the MDJ whose name appears on the Around Town article.

Was he hiding something? An agenda, perhaps?

Dwight Davis
Atlanta

Dwight Davis is legal counsel for Cobb EMC and is a senior litigation partner at King & Spalding, LLP. He is a fellow of the American College of Trial Lawyers and a member of the Georgia and New York State Bar Associations.

Editor's note: As all silk stocking lawyers like Mr. Davis know, and as all country lawyers know, it is impossible to ask questions about a court ruling you have never read or heard about.

MDJ publisher Otis Brumby Jr. attended the lunch meeting referred to and spoke with CEO Dwight Brown, EMC vice president for public relations Sam Kelly, several EMC/Brown lawyers, at least two EMC board members, EMC public relations spokesperson Carol Cookerly and her associate. In addition, he ate lunch at the same table as Dean Alford, a member of the board of directors of Cobb Energy and a major stockholder in the controversial for-profit company before it was shut down as part of the court settlement. What was left became a wholly-owned subsidiary of Cobb EMC. Alford also is the EMC's spokesman for the planned $2.2 billion Plant Washington coal-fired power plant in which Cobb EMC is slated to be the largest investor. In addition, Alford is a partner in several land deals with Brown.

Nothing was said to Brumby or the crowd by any of the EMC officials about the 3-0 adverse ruling released that morning from the Georgia Court of Appeals.

Brumby learned of the EMC court setback when he returned to his office after the lunch and read his e-mails - e-mails sent to the MDJ by plaintiffs Butch Thompson and Bo Pounds - not by any legal team connected with Brown and the EMC. After all, fishermen don't like to talk about the big one that got away - and lawyers don't like to talk about the ones they lose.